Synonyms

See also

In law,
jurisdiction (from the Latin ius, iuris
meaning "law" and dicere meaning "to speak") is the practical
authority granted to a
formally constituted legal
body or to a political
leader to deal with and make pronouncements on legal matters
and, by implication, to administer justice within a defined area of
responsibility.

Or in common English: Jurisdiction is the
authority given to a legal body, or to a political leader (Prime
Minister, President, etc.) to deal with legal matters, and to
pronounce or enforce legal matters.

Types of judicial jurisdiction

There are three main types
of judicial jurisdiction, personal (personam), territorial (locum),
and subject matter (subjectam):

Personal - Authority over a person, regardless of his location.

Territorial - Authority confined to a bounded space, including
all those present therein, and events which occur there.

Subject Matter - Authority over the subject of the legal
questions involved in the case.

For jurisdiction to be complete, a court must
have a concurrence of subject matter jurisdiction with either
personal or territorial jurisdiction. The territorial jurisdiction
is critical, on the principle that courts enforce laws which are
territorial in their authority.

A succinct definition can be stated as follows:
"An area of land that is governed by an entity who can hold those
residing therein accountable for following specific laws."

Courts may also have jurisdiction that is
exclusive or concurrent (or shared). Where a court has exclusive
jurisdiction over a territory or subject matter, it is the only
court that is authorized to address that matter. Where a court has
concurrent or shared jurisdiction, multiple courts in the same area
can address the matter. Where concurrent jurisdiction exists in
civil cases, the parties may attempt to engage in forum
shopping, by bringing or moving the case to the court which
they deem most favorable to them.

Jurisdiction in the international dimension

Public
international law provides a framework within which nations and states (in the political sense of
the words) can come into being and relate to each other.

Jurisdiction as a political issue

A number of supranational
organizations and bodies have been created which provide mechanisms
whereby disputes between states may be avoided, discussed or
resolved, e.g. through arbitration or mediation. When a country is recognized as
de jure,
this is an acknowledgment by the other de jure nations that the new
country has sovereignty and the right to
exist. This is a political system that moves slowly, gathering
consensus wherever possible and the extent to which any state will
co-operate or participate is always at the discretion of each
sovereign state. Necessarily, if any state does agree to
participate in any of the activities of the supranational bodies
and to accept decisions that might be made in the ordinary course
of their business, that state is giving up a little of its
sovereign authority and thereby allocating a little power to these
bodies. Insofar as these bodies or nominated individuals may
resolve disputes in a judicial or quasi-judicial fashion, or
promote treaty
obligations in the nature of laws, the power ceded to these bodies
cumulatively represents each body's own jurisdiction. But no matter
how powerful each body may appear to become, the extent to which
any of the judgments
may be enforced, or proposed treaties and conventions may become or
remain effective within the territorial boundaries of each nation
is a political matter under the sovereign control of the relevant
representative government(s) which, in a democratic context, will
have electorates to satisfy.

International versus municipal jurisdiction

The fact that
international organizations, courts and tribunals have been created
raises the difficult question of how to co-ordinate their
activities with those of national courts. If the two sets of bodies
do not have concurrent jurisdiction but, as in the case of the
International Criminal Court (ICC), the relationship is
expressly based on the principle of complementarity, i.e. the
international court is subsidiary or complementary to national
courts, the difficulty is avoided. But if the jurisdiction claimed
is concurrent, or as in the case of
International Criminal Tribunal for the former Yugoslavia
(ICTY), the international tribunal is to prevail over national
courts, the problems are more difficult to resolve
politically.

The concept of universal
jurisdiction is fundamental to the operation of global
organizations such as the United
Nations and the
International Court of Justice (ICJ), which jointly assert the
benefit of maintaining legal entities with jurisdiction over a wide
range of matters of significance to states (the ICJ should not be
confused with the ICC and this version of "universal jurisdiction"
is not the same as that enacted in the War
Crimes Law (Belgium) which is an assertion of extraterritorial
jurisdiction that will fail to gain implementation in any other
state under the standard provisions of public
policy). Under Article 34 Statute of the ICJ
http://www.icj-cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm
only states may be parties in cases before the Court and, under
Article 36, the jurisdiction comprises all cases which the parties
refer to it and all matters specially provided for in the Charter
of the United Nations or in treaties and conventions in force. But,
to invoke the jurisdiction in any given case, all the parties have
to accept the prospective judgment as binding. This reduces the
risk of wasting the Court's time.

Despite the safeguards built into the
constitutions of most of these organizations, courts and tribunals,
the concept of universal jurisdiction is controversial among those
states which prefer unilateral to multilateral solutions through
the use of executive or military authority, sometimes described as
realpolitik-based
diplomacy.

Within other international contexts, there are
intergovernmental
organizations such as the World
Trade Organization (WTO) that have socially and economically
significant dispute resolution functions but, again, even though
their jurisdiction may be invoked to hear the cases, the power to
enforce their decisions is at the will of the states affected, save
that the WTO is permitted to allow retaliatory action by successful
states against those states found to be in breach of international
trade law. At a regional level, groups of states can create
political and legal bodies with sometimes complicated patchworks of
overlapping provisions detailing the jurisdictional relationships
between the member states and providing for some degree of harmonization between
their national legislative and judicial functions, e.g. the
European
Union and African
Union both have the potential to become federated states
although the political barriers to such unification in the face of
entrenched nationalism will be very
difficult to overcome. Each such group may form transnational
institutions with declared legislative or judicial powers. For
example, in Europe, the
European Court of Justice has been given jurisdiction as the
ultimate appellate court to the Member States on issues of European
law. This jurisdiction is entrenched and its authority could only
be denied by a Member State if that Member State asserts its
sovereignty and withdraws from the Union.

International and municipal laws

The standard treaties and
conventions leave the issue of implementation to each state, i.e.
there is no general rule in international law that treaties have
direct
effect in municipal law, but some states, by virtue of their
membership of supranational bodies, allow the direct incorporation
of rights or enact legislation to honor their
international commitments. Hence, citizens in those states can
invoke the jurisdiction of local courts to enforce rights granted
under international law wherever there is incorporation. If there
is no direct effect or legislation, there are two theories to
justify the courts incorporating international into municipal law:

Monism

This theory characterizes international and municipal law as a
single legal system with municipal law subordinate to international
law. Hence, in the
Netherlands, all treaties and the orders of international
organizations are effective without any action being required to
convert international into municipal law. This has an interesting
consequence because treaties that limit or extend the powers of the
Dutch government are automatically considered a part of their
constitutional law, e.g. the
European Convention for the Protection of Human Rights and
Fundamental Freedoms and the
International Covenant on Civil and Political Rights. In states
adopting this theory, the local courts automatically accept
jurisdiction to adjudicate on lawsuits relying on
international law principles.

Dualism

This theory regards international and municipal law as separate
systems so that the municipal courts can only apply international
law either when it has been incorporated into municipal law or when
the courts incorporate international law on their own motion. In
the United
Kingdom, for example, a treaty is not effective until it has
been incorporated at which time it becomes enforceable in the
courts by any private citizen, where appropriate, even against the
UK Government. Otherwise the courts have a discretion to apply
international law where it does not conflict with statute or the common law.
The constitutional principle of parliamentary
supremacy permits the legislature to enact any law inconsistent
with any international treaty obligations even though the
government is a signatory to those treaties.

The jurisdiction of courts between and within states

This
now concerns states in the
technical legal sense of the word and the relationships both
between courts in different states, and between courts within the
same state. The usual legal doctrine under which questions of
jurisdiction are decided is termed forum
non conveniens.

Supranational

At a supranational level, countries have
adopted a range of treaty and convention obligations to relate the
right of individual litigants to invoke the jurisdiction of state
courts and to enforce the judgments obtained. For example, the
Member
States of the
EEC signed the Brussels
Convention in 1968 and, subject to amendments as new states
joined, it represents the default law for all twenty-five Member
States of what is now termed the European
Union on the relationships between the courts in the different
countries. In addition, the Lugano
Convention (1988) binds the European Union and the European
Free Trade Area. With effect from 1 March, 2002, all the Member
States of the EU except Denmark accepted Council
Regulation (EC) 44/2001, which makes major changes to the
Brussels Convention and is directly
effective in the Member States. In some legal areas, at least,
the reciprocal
enforcement of foreign judgments is now more straightforward.
At a state level, the traditional rules still determine
jurisdiction over persons who are not domiciled
or habitually resident in the European Union or the Lugano
area.

There is a real and growing problem of forum
shopping and in the reluctance of some states to adopt more
positive Conflict of Laws rules. Although the
Hague Conference and other international bodies have made
consistently useful recommendations on jurisdictional matters,
litigants with the
encouragement of lawyers
now more commonly operating on a contingent
fee continue to exploit the system to their advantage, always
seeking remedies in
courts where the outcome is more likely to be favorable.

Many nations are subdivided into states and
provinces (i.e. a
subnational
"state") in a federation (as can be found
in
Australia, Brazil,
India, Mexico
and the United States)
and these subunits will exercise jurisdiction through the court
systems as defined by the executives and legislatures operating
within the whole. Sometimes when the areas of separate governmental
entities overlap one another—for example, between a state
and the federation to which it belongs—their jurisdiction
is shared or concurrent jurisdiction. Otherwise one governmental
entity will have exclusive jurisdiction over the shared area. When
jurisdiction is concurrent, one governmental entity may have
supreme jurisdiction over the other entity if their laws conflict.
If the executive or legislative powers within the jurisdiction are
not restricted or restricted only by a number of limited
restrictions, these government branches have plenary power such as
a national policing
power. Otherwise an enabling act
grants only limited or enumerated powers. The problem of forum
shopping also applies as between federal and state courts, and it
is for each system to adjust jurisdictional matters to achieve the
fairest possible results.

State level

Within each state, it is for the government to
determine the allocation of jurisdiction:

There must be physical distribution of courts and tribunals
throughout the territory which should be divided into convenient
functional divisions to provide an effective service to the local
communities. Hence, it may be convenient for there to be an
extensive network of smaller local courts having a criminal law
jurisdiction so that neighborhoods can have a disposition system
administered by those familiar with their locality and its needs
(see criminal
jurisdiction). Whereas more specialized civil
and commercial
courts need only be located in larger towns and major cities where
there is a demand for the particular specialisms consistent with
the economic costs of providing the facilities and personnel to
staff them. Each court system lays down detailed rules for
determining who may invoke the jurisdiction in each of the various
divisions. In addition to the possibility that the plaintiff has a local
domicile, nationality or habitual
residence, these conditions may vary from minimum residence
requirements for those more transiently present, that business has
been conducted within the territory or that there is some other
real connection between the plaintiff and/or the cause of
action and the state in which the lawsuit has been filed.

The government may decide that individuals within the executive
should have the power to make judicial or quasi-judicial decisions,
and the extent to which the exercise of this jurisdiction should be
subject to review by the courts. This has constitutional
implications in that many states operate on the basis of the
separation
of powers which requires that each branch of government
operates as a check on the potential abuse of power by the others.
Within the formalized judicial structure, jurisdiction may also be
granted to individuals for the provision of specialized functions
(e.g. the role of special
referees or those individuals of prestige commissioned to
conduct inquiries into specific situations with the power to compel
testimony). In parallel to the courts system, other tribunals and quasi-judicial
bodies may also have a form of jurisdiction, e.g. for arbitration,
mediation, etc within a broad framework of
alternative dispute resolution. Under normal circumstances, the
supervisory function of the courts will be built into the
constitutive process for each tribunal or body, or the courts will
allow their jurisdiction to be invoked, e.g. by way of remedies
such as certiorari,
to ensure that justice is seen to be done. However, some
well-established bodies such as the Beth Din
represent more interesting challenges. Such religious or
culturally-based courts often have significant power within the
relevant communities yet, in an increasingly multi-ethnic,
multi-cultural world, the secular or culturally-different majority
in each state cannot be seen to be too quick to interfere and
impose its standards without appearing to engage in unequal
treatment and discrimination (see the
secular response to the get as an
example).

Jurisdiction in the United States

The primary distinctions
between areas of jurisdiction are codified at a national level. As
a common
law system, jurisdiction is conceptually divided between
jurisdiction over the subject
matter of a case and jurisdiction over the person of the
litigants. (See
personal jurisdiction.) Sometimes a court may exercise
jurisdiction over property located within the perimeter of its
powers without regard to personal jurisdiction over the litigants;
this is called jurisdiction
in rem.

A court whose subject-matter jurisdiction is
limited to certain types of controversies (for example, suits in
admiralty
or suits where the monetary amount sought is less than a specified
sum) is sometimes referred to as a court of special jurisdiction or
court of limited jurisdiction.

A court whose subject-matter is not limited to
certain types of controversy is referred to as a court of general
jurisdiction. In the U.S. states,
each state has courts of general jurisdiction; most states also
have some courts of limited jurisdiction. Federal courts (those
operated by the
federal government) are courts of limited jurisdiction.
Federal
jurisdiction is divided into
federal question jurisdiction and diversity
jurisdiction. The
United States district courts may hear only cases arising under
federal law and treaties, cases involving ambassadors, admiralty
cases, controversies between states or between a state and citizens
of another state, lawsuits involving citizens of different states,
and against foreign states and citizens.

Certain courts, particularly the
United States Supreme Court and most state
supreme courts, have discretionary
jurisdiction, meaning that they can choose which cases to hear
from among all the cases presented on appeal. Such courts generally
only choose to hear cases that would settle important and
controversial points of law. Though these courts have discretion to
deny cases they otherwise could adjudicate, no court has the
discretion to hear a case that falls outside of its subject-matter
jurisdiction.

It is also necessary to distinguish between
original
jurisdiction and appellate
jurisdiction. A court of original jurisdiction has the power to
hear cases as they are first initiated by a plaintiff, while a court of
appellate jurisdiction may only hear an action after the court of
original jurisdiction (or a lower appellate court) has heard the
matter. For example, in
United States federal courts, the United States district courts
have original jurisdiction over a number of different matters (as
mentioned above), and the
United States court of appeals have appellate jurisdiction over
matters appealed from the district courts. The U.S. Supreme Court,
in turn, has appellate jurisdiction (of a discretionary nature)
over the Courts of Appeals, as well as the state supreme courts, by
means of writ of
certiorari.

However, in a special class of cases, the U.S.
Supreme Court has the power to exercise original jurisdiction.
Under , the Supreme court has original and exclusive jurisdiction
over controversies between two or more states, and original (but
non-exclusive) jurisdiction over cases involving officials of
foreign states, controversies between the
federal government and a state, actions by a state against the
citizens of another state or foreign country.